Ask the expert: can a sacked employee with less than a year's service claim discrimination?

Written by
Changeboard Team

10 May 2012

10 May 2012 • by Changeboard Team

The question

If an employee with less than one year's service (six months) is instantly dismissed for breaching company policy, is there any legal obligation to hear their side of the story?

Other members of staff have been breaching the same rule (use of company vehicles), but have not yet been disciplined - they all have several years of service. Could the dismissed employee now claim discrimination?

The legal verdict

Martin Brewer, a partner at Mills & Reeve

There is no legal obligation to hear anyone's side of the story. If an employee qualifies to claim unfair dismissal, then your legal obligation is to act reasonably.

If they do not qualify to claim unfair dismissal, then no such obligation arises. However, you do raise a valid point about discrimination.

If the others who have breached the policy and have not been disciplined are, say, all men and the dismissed employee is a woman, it may invite the conclusion that her less favourable treatment is because of her sex. The same applies to anyone with so-called protected characteristics under the Equality Act (age, race, disability and so on).

The other thing to remember is that, if you dismiss someone for a prohibited reason, even if they would not usually have the requisite service to claim ordinary unfair dismissal, they will be able to under these circumstances as a day one right.

For example, if you dismiss someone for whistleblowing, irrespective of their length of service, they can claim unfair dismissal. There are a large number of prohibited reasons so you need to be clear that you are not really dismissing the employee for one of those.

If in doubt, take further advice because such dismissals are automatically unfair.

Dismissal and discrimination law

Esther Smith, a partner at Thomas Eggar

By law, your employee is entitled to one week’s notice (or longer if this is specified in their employment contract).

Therefore, when dismissing them, in order to avoid breaching their entitlement to notice, you should ensure that they are given sufficient – either by allowing them to continue working during their notice period or by paying their notice in lieu.

If you dismiss the employee without giving sufficient notice, they could bring a claim of wrongful dismissal for unpaid notice pay. But if you can show that the staff member’s actions were serious enough to amount to a repudiatory (ie fundamental) breach of contract, you could potentially justify dismissal without notice.  

However, to do this, you would need to carry out a reasonable investigation into the matter, which would involve hearing their side of the story.
Your employee would not be able to bring a claim for unfair dismissal against you as they do not have the requisite years’ service. But there is no qualifying period of service for discrimination claims.

The law currently protects those discriminated against on the grounds of their age, sex, race, disability, marriage or civil partnership, gender reassignment, sexual orientation, pregnancy and maternity and religious or philosophical beliefs. 

If your employee feels discriminated against on any of these grounds, they could bring a claim against you despite only having six months’ service. The success of such a claim would very much depend on the particular circumstances involved.

But any claim for discrimination could arise or gain momentum if the other employees who have breached the same policy, do not share the same protected characteristic as this staff member (ie if the dismissed employee is female and the others are all male) and are not disciplined to the same extent.

The full version of this article was first published by our partner HRzone